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Wednesday, February 16, 2011

School board rejects janitor’s excuse

NASHUA – A school custodian fired after he was allegedly found sleeping on the job in a classroom lost his bid to get his job back during a grievance hearing before the Board of Education on Monday night.

Kevin Powers, formerly a custodian working the night shift at Birch Hill Elementary School, was fired in October after his supervisor said he found him sleeping under a teacher’s desk with the lights off.

Powers has been fighting his termination since then, and on Monday night, he brought his case to the school board. He was looking to be reinstated, as well as paid for lost wages and benefits.

Powers, who has worked as a custodian in the district for nine years, told the board he was doing back exercises.

“I’m no angel, but I’m not what they’re trying to make me out to be,” Powers said.

Powers chose to hold his grievance hearing in public, during which administrators went through his work history, detailing other infractions during his tenure and other cases in which they suspected he had been sleeping on the job.

Following the hearing, board members voted unanimously to side with the administration’s decision to fire Powers.

Al Dichard, custodial supervisor for the district, said he was doing a walkthrough of the school around 7 p.m. Oct. 12 when he went upstairs and found a pair of sneakers on the floor in a classroom, with a newspaper and a pair of glasses on a desk. Finding that to be odd, Dichard said he continued to search other classrooms, looking for Powers.

Dichard said he walked into one classroom with the lights off and noticed something white on the floor.

“It happened to be Mr. Powers’ feet,” Dichard said. “It was his white socks that I saw. He was laying behind a teacher’s desk. He was not moving.”

Dichard said he stood there for 10 minutes, and there was no motion. After turning on the lights, Dichard said Powers got up and disputed that he was sleeping, saying he was stretching his back.

Dichard said he confirmed with another employee that Powers had already taken his break for the evening. Given Powers’ history of indiscretions, Dichard said, the decision was made to fire him.

During his nine-year tenure, Powers had received written or verbal warnings for leaving work early, being on the computer while he was supposed to be working, having inappropriate pictures in his locker, and verbally or physically intimidating another employee, as well as two instances of unwelcome touching of another employee.

The incident that led to his firing was the first time Powers had grieved a disciplinary action. Powers said he had been on medications for his back issues. He brought a copy of the back exercises he was doing, but provided no doctor’s note or medical history to confirm his condition.

Board President Bob Hallowell asked Powers why he wouldn’t have brought witnesses to support his case. Powers said he was unfamiliar with how the grievance process worked. He said if he had known he could bring witnesses, he would have.

“I didn’t expect this format, honestly,” Powers said. “I expected a rubber stamp.”

Board members seemed perplexed that Powers would be doing his back exercises in the dark. Powers said he was keeping the lights off to save energy. He stressed that during his tenure, he has been an effective employee.

“I’ve never abused my sick time,” he said. “I’ve never abused vacation time. I’ve never had a complaint from school staff or a teacher.”

Powers told the board he has tried to shine a spotlight on questionable activity in the district, which he now believes he is being punished for. He accused union and management of colluding to oust him.

He said there were times when he finished early and could be found shooting hoops in the gym or checking his e-mail.

“I’m not the only one to do so,” he said.

Lorne Swindell, assistant director of energy, testified during the hearing about two instances when he believed he found Powers sleeping on the job. Powers said there may have been occasions when he would work a night shift and was called in for an emergency morning shift and may have been caught catching up on his sleep, but that wasn’t the case in October.

Although Powers said he had discussed his back condition with district staff, Dichard said there was no record of a medical condition having been reported.

“The only time he mentioned anything to me was the night where I found him,” Dichard said.

City attorney Stephen Bennett, representing the School District, said Powers’ story didn’t add up.

“If he was doing back exercises, they had to be the quietest, the slowest and with the least amount of movement,” Bennett said. “It’s not the first occasion that Powers found something else to do besides his job.”

During deliberations, it was clear board members weren’t buying Powers’ excuse, either. Board member Sandra Ziehm said it was unfortunate Powers didn’t bring any evidence to confirm his story. But even if Powers was doing back exercises, Ziehm questioned whether doing them on work time was appropriate.

Board member Dennis Ryder said Powers’ record of indiscretions confirmed he wasn’t taking his job seriously.

“It’s quite clear that Mr. Powers has an elastic idea of what his work consists of,” Ryder said.

Board member Bill Mosher said his experience as a custodian made it difficult for him to believe there would be a lack of things to do on the job.

“At no time is your work ever really done,” Mosher said.

Powers was accompanied by Jason Guerette, chief steward for AFSCME Local 365. Powers could choose to appeal the decision to the Public Employee Labor Relations Board.

Michael Brindley can be reached at 594-6426 or